In re: Search Warrant dated November 5, 2021

Filing 172

ORDER: For the foregoing reasons, the Court OVERRULES IN PART and SUSTAINS IN PART RCFP's objections. The Court adopts the O&O except as modified above, and directs the Government to move to unseal the Search Warrant Materials at the close of its investigation. The Clerk of Court is directed to close the case, as well as the parallel cases, 21 Misc. 819 and 21 Misc. 825. (Signed by Judge Analisa Torres on 4/16/2024) (ate)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

In re Search Warrant dated November 5, 2021,

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 04/16/2024
21 Misc. 813 (AT)
ORDER

ANALISA TORRES, District Judge:
On November 6, 2021, the Government executed a search warrant at the residence of
Petitioner, James O’Keefe, the then-president of Project Veritas, an “undercover investigative
journalism” organization. Order at 4, ECF No. 164. The Reporters Committee for Freedom of
the Press (“RCFP”) moves to “unseal the search warrant application, supporting affidavit, return,
and any other judicial documents filed in connection with the November 5, 2021 search warrant”
(collectively, the “Search Warrant Materials”). RCFP Mot. at 1, ECF No. 34-1. The Court
referred RCFP’s motion to the Honorable Sarah L. Cave.
By opinion and order (the “O&O”), Judge Cave denied RCFP’s motion, holding that,
although the Search Warrant Materials were judicial documents, the law enforcement and
privacy interests advanced by the Government outweigh the presumption of access under both
the common law and the First Amendment. O&O, ECF No. 47. RCFP timely objected to Judge
Cave’s order. RCFP Obj., ECF No. 49. For the reasons stated below, RCFP’s objections are
OVERRULED IN PART and SUSTAINED IN PART.1

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On November 4, 2021, the Government executed search warrants at the residences of Spencer Meads and Eric
Cochran, who were petitioners in the related matters of 21 Misc. 819 and 21 Misc. 825. Order at 1, 4. RCFP’s
motion was filed on the docket involving O’Keefe only, but the Court’s conclusions would apply to the warrants for
Meads’s and Cochran’s residences as well.

BACKGROUND2
On November 5, 2021, Judge Cave issued a search warrant authorizing the seizure of
electronic devices from O’Keefe’s residence. ECF No. 127-5. Judge Cave approved the warrant
based on detailed affidavits submitted by the Government.3 The affidavits established probable
cause that O’Keefe’s devices contained evidence of federal crimes—specifically, (1) conspiracy
to transport stolen property across state lines and possess stolen goods, (2) interstate
transportation of stolen property, (3) possession of stolen goods, (4) aiding and abetting, (5)
accessory after the fact, and (6) misprision of felony, in violation of 18 U.S.C. §§ 2, 3, 4, 371,
2314, and 2315. ECF No. 127-5 at 2. The warrant authorized the Government to seize from the
devices seven categories of evidence pertaining to the time period from August 1, 2020 to the
date of seizure. Id. at 2–3. On November 6, 2021, the FBI executed the warrant for O’Keefe’s
home and seized two mobile phones. ECF No. 127 at 9.
On November 15, 2021, RCFP moved to unseal the Search Warrant Materials. See
RCFP Mot. The Court referred the motion to Judge Cave. The Government argued that search
warrant applications are categorically excepted from disclosure at the pre-indictment stage of a
grand jury investigation. O&O at 6. Judge Cave rejected this argument, instead holding that the
Search Warrant Materials are judicial documents and that a strong presumption of access
attaches to the Search Warrant Materials because they “are used to determine [individuals’]
substantive legal rights.” Id. at 5–9 (citation omitted). However, she denied RCFP’s request to
unseal the Search Warrant Materials because the countervailing law enforcement and third-party
interests presented by the Government outweighed the strong presumption of access. Id. at 16–

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The Court presumes familiarity with the facts and procedural history of this matter as detailed in its December 21,
2023 order. See Order at 2–6.
3

The affidavits were provided on an ex parte basis to the Court. See ECF No. 42.

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18. Judge Cave also ruled that the First Amendment did not provide a separate right of access to
the Search Warrant Materials. Id. at 18–19.
On December 21, 2021, RCFP filed objections to the O&O, arguing that Judge Cave
erred by (1) requiring wholesale sealing, as opposed to disclosure with redactions, (2) not setting
a date for the Government to move to unseal the documents, and (3) ruling on the First
Amendment question. RCFP Obj. at 2–4. With the Court’s leave, the Government responded to
RCFP’s objections on June 24, 2022. Gov. Opp., ECF No. 83; see ECF No. 80.
DISCUSSION
I.

Standard of Review
The Court must consider timely objections filed to a magistrate judge’s order. When a

magistrate judge determines non-dispositive matters, the Court shall “modify or set aside any
part of the order that is contrary to law or clearly erroneous.” Fed. R. Crim. P. 59(a); see Fed. R.
Civ. P. 72(a). When a magistrate judge determines a dispositive matter, the Court “must
consider de novo any objection to the magistrate judge’s recommendation.” Fed. R. Crim. P.
59(b)(3); see Fed. R. Civ. P. 72(b)(3).
Although the Second Circuit has not decided whether a motion to unseal by a third-party
intervenor is dispositive or non-dispositive, a motion to unseal by a party to the action is nondispositive. See, e.g., Alvarado v. City of New York, No. 04 Civ. 2558, 2009 WL 510813, at *1
(E.D.N.Y. Feb. 27, 2009); United States v. Pirk, 282 F. Supp. 3d 585, 590 (W.D.N.Y. 2017). So
is a motion to intervene on a permissive basis. See Chen-Oster v. Goldman, Sachs & Co., No. 10
Civ. 6950, 2016 WL 11645644, at *2–3 (S.D.N.Y. June 6, 2016). However, this is RCFP’s
“only merits claim,” in which case the “dispositive-non-dispositive dichotomy is not [especially]
helpful.” Dobson v. Milton Hershey Sch., 434 F. Supp. 3d 224, 231 (M.D. Pa. 2020) (emphasis
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omitted). And, the Circuit permits “media intervenors to appeal from apparently interlocutory
orders” on the ground that “orders denying access are final as to the intervenors and that the
intervention motion could have been treated as a separate civil case in which the ruling would
have been final.” Lugosch v. Pyramid Co. v. Onondaga, 435 F.3d 110, 117 (2d Cir. 2006)
(collecting cases). In sum, the issue is not settled, and “[v]arious district courts have dealt with
this issue differently.” Dobson, 434 F. Supp. 3d at 231 (collecting cases).
When the law is unsettled as to which standard to apply, the Circuit has advised district
judges to “review magistrate judge orders . . . both de novo and under a deferential standard.”
Kiobel v. Millson, 592 F.3d 78, 105 (2d Cir. 2010) (Leval, J., concurring). Therefore, the Court
shall apply a de novo standard of review and, if necessary, articulate what its findings would be
under a deferential standard.
II.

Common Law Right of Access
“The common law right of public access to judicial documents is firmly rooted in our

nation’s history.” Lugosch, 435 F.3d at 119. This presumption of access “is based on the need
for federal courts . . . to have a measure of accountability and for the public to have confidence in
the administration of justice.” Id. (quoting United States v. Amodeo (Amodeo II), 71 F.3d 1044,
1048 (2d Cir. 1995)). Documents are considered “judicial documents” if they are “relevant to
the performance of the judicial function and useful in the judicial process.” Brown v. Maxwell,
929 F.3d 41, 49 (2d Cir. 2019) (citation omitted).
“Once the court has determined that the documents are judicial documents,” it must
“determine the weight of that presumption.” Lugosch, 435 F.3d at 119. “[W]here documents
directly affect an adjudication . . . or are used to determine litigants’ substantive rights, the
presumption of access is at its zenith.” Bernstein v. Bernstein Litowitz Berger & Grossmann
4

LLP, 814 F.3d 132, 142 (2d Cir. 2016) (citations and quotation marks omitted).
“Notwithstanding the presumption of access” under the common law, “the documents
may be kept under seal if ‘countervailing factors’ . . . so demand.” Lugosch, 435 F.3d at 124.
Such factors include “‘the danger of impairing law enforcement or judicial efficiency’ and ‘the
privacy interests of those resisting disclosure.’” Id. (quoting Amodeo II, 71 F.3d at 1050). The
sealing of judicial documents “may be justified only by specific, on-the-record findings that
sealing is necessary to preserve higher values and only if the sealing order is narrowly tailored to
achieve that aim.” Id. If the Court decides that “compelling reasons” require it to deny public or
press access to judicial documents, “the limitation should not be broader than necessary.” United
States v. All Funds on Deposit at Wells Fargo Bank, 643 F. Supp. 2d 577, 585 (S.D.N.Y. 2009)
(collecting cases requiring disclosure with redactions).
A. Immediate Unsealing
RCFP argues that Judge Cave should have unsealed the Search Warrant Materials with
redactions pursuant to the common law right of access. RCFP first claims that the Government
invoked “generic law enforcement and privacy interests,” providing Judge Cave with an
insufficient factual basis to order broad sealing. RCFP Obj. at 9. The Court disagrees. Judge
Cave examined the Search Warrant Materials in camera and, therefore, had a sufficient factual
basis for her conclusions. O&O at 12–13.
And, contrary to RCFP’s contention that the O&O relied on generic interests, Judge Cave
made the “specific findings” required to justify continued sealing of the Search Warrant
Materials. United States v. Amodeo (Amodeo I), 44 F.3d 141, 147 (2d Cir. 1995). Judge Cave
found that the Search Warrant Materials are connected to “an ongoing federal grand jury

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proceeding, before anyone has been charged with a crime.”4 O&O at 11. Judge Cave also
determined that the Search Warrant Materials would disclose “the evidence obtained by the
United States prior to the searches” and “considerable detail about individuals who may have
already provided information to the Government—voluntarily or involuntarily—such that
unsealing of the [Search Warrant] Materials could subject them to witness tampering,
harassment, or retaliation.” Id. at 12 (cleaned up); see also id. at 13 (“[T]he [Search Warrant]
Materials include references to a number of individuals employed by or associated with Project
Veritas. Their conduct in relation to the alleged criminal activity is described in considerable
detail, although not all of that conduct may be criminal.”).
RCFP contends that unsealing a redacted version of the Search Warrant Materials would
not undermine the Government’s law enforcement interests because there exists a “wealth of
information about the Government’s investigation already in the public domain.” RCFP Obj. at
9–11; see ECF No. 91. RCFP suggests that facts already disclosed in O’Keefe’s public
statements, New York Times articles, and the Government’s filings could be unsealed, while nonpublic facts could be redacted. RCFP Obj. at 9–11.
As to O’Keefe’s statements and the Times articles, neither provides “official[]
confirm[ation]” of the facts the Government gathered through its grand jury investigation, the
sources of those alleged facts, and the evidence obtained by the Government to prove such facts.
United States v. Smith, 985 F. Supp. 2d 506, 531–32 (S.D.N.Y. 2013). Therefore, even if
O’Keefe or the Times may have disclosed information that is also in the Search Warrant
Materials, the Government would still have a valid law enforcement interest in keeping such

Although Judge Cave rejected the Government’s broad contention that all search warrant applications were exempt
from disclosure, she correctly held that the status of the investigation was properly taken into account when
assessing the weight of the Government’s interest. O&O at 7.
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information under seal.
With respect to the Government’s filings, the Government has been “circumspect in its
public statements to the Court” regarding its investigation. Order at 2 n.2 (citation omitted); see
Gov. Opp. at 4–5. Although it has identified and charged Aimee Harris and Robert Kurlander as
the two persons who worked with Project Veritas to steal the items under investigation, it has not
publicly revealed the “sources or methods used in the Government’s ongoing grand jury
investigation” or the other “persons and/or entities” that it approached as part of that
investigation. ECF No. 95 at 2. Moreover, the Search Warrant Materials “contain a far lengthier
and more detailed discussion” of the events at issue and the “evidence gathered in the
Government’s ongoing grand jury investigation” in comparison to the “brief, limited set of
factual allegations” contained in the information charging Harris and Kurlander and the
Government’s filings before this Court. Id.; see Gov. Opp. at 4–5. Therefore, the Government’s
careful public statements do not alter the conclusion that disclosure of the Search Warrant
Materials would undermine the ongoing investigation. See In re Search Warrants Executed on
April 28, 2021, No. 21 Misc. 425, 2021 WL 2188150, at *3 (S.D.N.Y. May 28, 2021) (“[T]he
presumption of access is plainly outweighed by the need to protect a grand jury investigation that
is ongoing.”); In re Sealed Search Warrants Issued June 4 & 5, 2008, No. 08 Misc. 208, 2008
WL 5667021, at *4 (N.D.N.Y. July 14, 2008) (“[T]he interest in the integrity and security of [the
criminal] investigation outweighs the interest in immediate access to the documents.”).
In reaching her decision, Judge Cave did consider “whether redactions would be
sufficient to protect the countervailing interests” and concluded that the Search Warrant
Materials “contain not only the legal theories of the [i]nvestigation, but also details about the
information the Government has obtained and from which sources.” O&O at 18. As a result,
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she found that unsealing redacted versions of the Search Warrant Materials would pose too great
a risk to the ongoing investigation5 and the third-party privacy interests. Id. The Court has
reviewed the Search Warrant Materials in camera and agrees with Judge Cave. See In re Sealed
Search Warrants Issued June 4 & 5, 2008, 2008 WL 5667021, at *5 (holding that where the
warrant applications and affidavits reveal legal theories and sources of the Government’s facts,
“unsealing either the applications or affidavits, even in redacted form, cannot be accomplished at
this stage without serious risk to the investigation”).
Accordingly, RCFP’s objection regarding immediate unsealing is OVERRULED.
B. Unsealing at the Close of the Government’s Investigation
RCFP next contends that Judge Cave should have required the Government to move to
unseal the documents at the close of its investigation. Given Judge Cave’s finding that the
Search Warrant Materials are entitled to a weighty presumption of public access,6 the Court must
be mindful to employ “the least restrictive means” to constrain public access. All Funds, 643 F.
Supp. 2d at 585.
Courts have held that law enforcement interests in protecting the integrity of an ongoing
investigation weaken when the Government decides to file charges or close an investigation
without bringing charges. See In re Search Warrant Dated October 13, 2023, No. 23 Misc. 389,
2023 WL 6938292, at *4–5 (S.D.N.Y. Oct. 20, 2023) (granting motion to unseal a search warrant
affidavit after the target of the investigation had been charged in a public criminal complaint); In

Over two years have passed since the execution of the search warrant at O’Keefe’s house, and the Government has
not yet brought charges or closed its investigation. The passage of time may, in certain circumstances, weaken the
law enforcement interests at issue even before an investigation is closed. But, this case does not present such a
circumstance. The Court appointed a special master to review the evidence seized pursuant to the search warrant,
see ECF No. 48, and the Government did not view this evidence until the special master completed her review and
her recommendations were adopted by the Court. See Order.
5

The Government suggests that it disagrees with Judge Cave’s finding, but did not formally object to the O&O on
this issue. Gov. Opp. at 6 n.5.
6

8

re Sealed Search Warrants Issued June 4 & 5, 2008, 2008 WL 5667021, at *4 (holding that
immediate access was not required when “the investigation will result in the filing of charges or
the determination not to do so” because “future disclosure of the documents is likely”); In re
Search Warrant, No. 16 Misc. 464, 2016 WL 7339113, at *4 (S.D.N.Y. Dec. 19, 2016). Judge
Cave correctly recognized that if the investigation “is closed without any criminal charges being
filed, the law enforcement interests and possibly some of the third parties’ privacy interests
would have diminished to warrant revisiting the continued confidentiality of the [Search
Warrant] Materials.” O&O at 17. And, if the Government does file charges, it will disclose
relevant facts and its legal theories such that wholesale sealing of the Search Warrant Materials
will no longer be necessary.7 See In re Sealed Search Warrant, Nos. 04 Misc. 370 & 388, 2006
WL 3690639, at *1, *5 (N.D.N.Y. Dec. 11, 2006) (requiring redacted disclosure of search
warrant affidavits after indictment and before trial).
To ensure that the restriction on public access dissipates when the law enforcement
interests at stake have weakened, the Court concludes that the unsealing of the Search Warrant
Materials is warranted at the close of the Government’s investigation—that is, when the
Government brings charges against Petitioner or decides not to bring charges.8 Accordingly,
RCFP’s objection as to this issue is SUSTAINED.9
III.

First Amendment Right of Access
In addition to the common law right of access, the First Amendment provides the media

and public a qualified right to access certain judicial documents. Lugosch, 435 F.3d at 120. To

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If charges are filed, certain redactions to the Search Warrant Materials may still be appropriate, but the Court does
not reach that question at this time.
8

RCFP also requests that the Court require the Government to file status updates to the Court about the status of its
investigation. The Court shall not micromanage the Government’s investigation, and this request is DENIED.
9

The Court would reach the same conclusion under a de novo or a clear-error review.

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determine which judicial documents the First Amendment right attaches to, the Second Circuit
has articulated two approaches. Id. First, courts use the “experience and logic” approach,
considering “whether the documents ‘have historically been open to the press and the general
public’ (experience) and whether ‘public access plays a significant positive role in the function
of the particular process in question’ (logic).” United States v. Cohen, 366 F. Supp. 3d 612, 627
(S.D.N.Y. 2019) (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 92 (2d Cir. 2004)).
Second, courts consider “the extent to which the judicial documents are derived from or are a
necessary corollary of the capacity to attend relevant proceedings to which the First Amendment
right of access attaches.” Id. (cleaned up). If the First Amendment right of access exists under
either approach, continued sealing is warranted “only with specific, on-the-record findings that
sealing is necessary to preserve higher values and only if the sealing order is narrowly tailored to
achieve that aim.” Lugosch, 435 F.3d at 124.
RCFP argues that Judge Cave should not have ruled on the First Amendment issue
because it did not press this argument. The Court disagrees. In its initial letter motion, RCFP
stated that “[t]he press and public have a presumptive right to inspect the Search Warrant
Materials under both the First Amendment and common law.” RCFP Mot. at 1. Although RCFP
stated that the Search Warrant Materials “should be immediately unsealed pursuant to common
law,” it argued that the First Amendment “provides an additional, independent basis for
unsealing the Search Warrant Materials.” Id. at 1 & n.1. The Second Circuit has cautioned that
courts “need not, and should not reach the First Amendment issue” if the common law right of
access provides access to the requested documents. In re Newsday, Inc., 895 F.2d 74, 78 (2d Cir.
1990). Therefore, it was appropriate for Judge Cave, having determined that the common law
right of access does not provide for unsealing, to proceed to the question of the First Amendment
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right, which “is stronger.” United States v. Erie Cnty., 763 F.3d 235, 241 (2d Cir. 2014).
RCFP then contends that Judge Cave was incorrect in determining that it lacks a First
Amendment right of access to the Search Warrant Materials. The Second Circuit “has not
addressed whether a constitutional right of access attaches to search warrant materials.” United
States v. Mullins, No. 22 Cr. 120, 2023 WL 3159418, at *4 (S.D.N.Y. Apr. 26, 2023). But,
courts in this Circuit have declined to recognize a First Amendment right to search warrant
materials at this pre-indictment stage of the investigation. See In re Search Warrant, 2016 WL
7339113, at *4; All Funds, 643 F. Supp. 2d at 583; In re San Francisco Chronicle, No. 07 Misc.
256, 2007 WL 2782753, at *3 (E.D.N.Y. Sept. 24, 2007); see also In re Newsday, 895 F.2d at 79
(unsealing search warrant materials only after a plea bargain was reached in the criminal case).
Therefore, the Court cannot conclude that Judge Cave erred in finding that the First Amendment
right of access does not attach to the Search Warrant Materials at this juncture. O&O at 19.
And, even if the First Amendment right were to exist, continued sealing remains justified
because disclosure of the details in the Search Warrant Materials—including sources, methods,
and potential witnesses—would harm the Government’s ongoing grand jury investigation. See
supra Section II.A; In re Search Warrants Executed on April 28, 2021, 2021 WL 2188150, at *3
(holding that the presumption of access is “plainly outweighed by the need to protect a grand
jury investigation that is ongoing”).
Accordingly, RCFP’s objection as to the First Amendment right of access is
OVERRULED.
CONCLUSION
For the foregoing reasons, the Court OVERRULES IN PART and SUSTAINS IN PART
RCFP’s objections. The Court adopts the O&O except as modified above, and directs the
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Government to move to unseal the Search Warrant Materials at the close of its investigation.
The Clerk of Court is directed to close the case, as well as the parallel cases, 21 Misc. 819 and 21
Misc. 825.
SO ORDERED.
Dated: April 16, 2024
New York, New York

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